Saturday, January 23, 2016

You Need Not Intervene Till You Expect You Were Sold Out

Ziani Homeowners Assoc. v. Brookfield Ziani LLC, No. G050284 (D4d3 Dec. 22, 2015)

Some condo owners sought to intervene in a construction defect litigation between their HOA and the condo developer. The trial court denied their motion as untimely because two years had passed since the complaint was filed. But even if its not clearly spelled out in the California case law (till now) that’s not the standard. California’s intervention statute, Code of Civil Procedure § 387 was somewhat modeled on Federal Rule of Civil Procedure 24. So the court relies on a body of analogous—and more of less uniform—federal authority to say that the intervention clock shouldn’t start running until interveners know or at least should have known that their interests weren’t being adequately represented by the current parties. Because the trial court incorrectly decided that the clock started ticking on the date of filing, the court reversed and remanded for timeliness findings based on the correct standard.

Reversed and remanded.

Wednesday, January 20, 2016

Turtles All the Way Down

Unifund v. Dear, No. APP1400181 (Riverside App. Div. Dec. 21, 2015)

So this is one of those collections cases like they talked about on a pretty interesting This American Life where a debt collector buys a debt to enforce it needs to prove that it is a rightful assignee and that the debt records are real. As Ira and crew explained, the collectors in these cases are often unprepared to come up with the goods when the evidence is put to the test. But not in this case, or so says the court. But this one seems to whiff of a hearsay issue.

Saturday, January 16, 2016

More Sport in State Court

Mitchell v. Superior Court, No. B264143 (D2d4 Dec. 22, 2015)

Defendant in a PI case moved in limine to exclude witnesses who were not disclosed in Plaintiff’s interrogatory responses, which the trial court granted. Problem is, the relevant interrogatory (Form Rog. 12.1) calls only for the disclosure of witnesses to the accident and not to witnesses to Plaintiff’s post-accident disabilities, which is what the witnesses here were apparently expected to testify about. So the court of appeal grants a writ. 

Thursday, January 14, 2016

Protective Order End-Around

Caldecott v. Superior Court, No. G051917 (D4d3 Dec. 18, 2015)

This is mostly a Public Records Act case, but it does make an interesting point about civil procedure. It also provides a useful tactical option. Plaintiff got some hot docs in discovery. He wants to publicly disclose them to blow the whistle on defendant, a school board. But he can’t because there’s a protective order limiting their use to the litigation. So he serves a PRA demand on the District, in order to obtain the docs outside of discovery. The court here holds that’s fine. The identity of the requester or his motives has no bearing on a PRA request. Either the docs are subject to an exemption or they aren’t. That a requester might intend to publicly disseminate the documents is not a legitimate reason to refuse to produce them. Indeed, that is the whole point of the PRA.

Writ granted.

Tuesday, January 12, 2016

Plaintiff's Parents Are Not an Appropirate Subject of a Mental Health Exam

Roe v. Superior Court, No. H042060 (D6 Dec. 18, 2015)

Plaintiff is a minor who alleges he was sexually abused by another kid at school. He sued the school and various school employees for failing to protect him. Because Plaintiff’s mental health was in issue, the school sought to have him submit to a mental heath examination under Code of Civil Procedure § 2032.020. But they also sought an order permitting their expert to interview Plaintiff
s parents as part of the examination.

That doesn’t work. When mental state is in issue, § 2032.020 permits a court to order a mental examination of any of three categories of people: parties, their agents, and persons under their custody or legal control. It notably does not include parties’ parents or guardians. So while it might be a standard professional practice for a psychologist to interview parents as part of examining an allegedly abused minor, the Discovery Act doesn’t provide for it, and the trial court shouldn’t have permitted it here.

The trial court did not err, however, in ordering that the defendant’s experts needed only to provide written reports of their examinations, without turning over the raw testing batteries they employed. While § 2032.610 requires an expert to produce the “results of all tests made,” no authority supports the proposition that it requires the production of raw data. And in any event, because the trial court made clear that it would consider ordering further discovery if the reports were insufficient, writ relief on the point wasn’t ripe at this point in the case.

Writ granted.

Monday, January 11, 2016

Trial Court Must Show Its Work on Lodestar

Kerkeles v. City of San Jose, No. H040919 (D6 Dec. 18, 2015)

The settlement agreement in a civil rights case permitted Plaintiff to seek an award of attorneys’ fees under 42 U.S.C. § 1988 from the court. Under § 1988, fees are computed using a lodestar—hours times reasonable rate, potentially adjusted by a multiplier. But the unadjusted rate times time measure is presumptively the reasonable fee. And, as the court here explains, in making that calculation, a trial court needs to show its work.

If a trial court questions the time time spent or whether the rates are market, it needs to explain its adjustments. In particular, if it thinks the time spent is excessive, it needs to give a specific reasoned basis for the reduction—shaving a substantial percentage off the top of total hours is viewed as suspect. Here, the trial court reduced plaintiff’s lawyer’s hours by half, without giving any reasoned explanation. That reduction—which the court here calls a ”draconian, blanket reduction in complete and uncritical conformance to the defendants’ proposals”—would not fly.

As to the rates, the fee applicant party bears the burden of showing its rates are reasonable in the relevant market. The opposing party can rebut that showing. If the trial court makes a reasoned determination, its computation merits significant deference, given the trial judge
s awareness of his or her own legal community. But the trial court here didn’t make any such reasoned determination here. So it needs to do that on remand too.

Reversed and remanded for reconsideration.

Friday, January 8, 2016

Meet the New Boss—Same Arbitration Clause as the Old Boss

Jenks v. DLA Piper Rudnik Gray Cary US LLP, No. A143990 (D1d1 Dec. 16, 2015)

Plaintiff was an associate at an estimable SF Bay Area law firm at the time it got absorbed into a firm that was in the process of merging its way to being one of the world’s largest law firms by headcount. Plaintiffs offer letter from the old firm had an arbitration clause. About a year after the merger, Plaintiff left the firm. His termination agreement, which didn’t have an arb clause, extended his benefits for about six months. Plaintiff subsequently sued the firm over a benefits issue. The firm successfully compelled an arbitration, in which Plaintiff won, but not as much as he would have liked.

Plaintiff challenged the original decision compelling arbitration, both in motion to vacate and then on appeal. For the first time on appeal, he argued that the successor firm wasn’t a party to the contract with the arbitration clause. Even if he didn’t forfeit the argument—which he did—as the surviving entity after a merger of partnerships, and in the absence of a novation, the successor firm accedes to the rights under any ongoing contracts with the prior firm. So it could enforce the arbitration clause.

Nor, as plaintiff argued, did the termination agreement novate the original employment contract. Although it had a merger clause disclaiming prior agreements, the clause was limited to agreements “with respect to the subject matter hereof.” Because that subject matter did not include a forum for the resolution of disputes, it did not work a novation on the arbitration obligations of the former employment contract, which remained in effect.


Wednesday, January 6, 2016

Seven Years' Default

Holloway v. Quetel, No. B259622 (D2d7 Dec. 14, 2015)

Plaintiff in this case, a pro se prisoner, has been trying since 2009 to get a default judgment for upaid rent on a property he owns. The case has already been reversed once because the trial court erroneously sua sponte dismissed the complaint for failure to state a claim. Plaintiff filed several rounds of default papers, each of which was rejected by the trial court for various and sundry errors and omissions. In rejecting the papers, however, the trial court only made vague intimations about the nature of the defects, instead just sending Plaintiff back to try again. Ultimately, after several tries, the trial court decided it had enough and entered a defense judgment.

The court here reverses and remands for one more try. In dealing with a pro se, there’s a fine line between a judge’s ensuring appropriate access to the court and his or her advocacy on the pro se’s behalf. It’s obviously not fair for the court to act as an adjunct lawyer for a party, even one who lacks a lawyer of his own. But when a court rejects a pro se’s papers for failing to conform to the Code of Civil Procedure or the Rules of Court, it doesn’t any cross the line for the trial court to actually point out what the defects are, so that the party will have notice and an honest chance to fix them. The trial court didn’t do that here, so the case goes back for one more mulligan.


Monday, January 4, 2016